Beauchamp v. Clarence-Rockland (City), 2022 CanLII 117807

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 9, 2022

CASE NO(S).: OLT-22-004001

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant (jointly): Monica Gaumond & Maxime Beauchamp

Subject: Minor Variance

Description: To reduce a minimum distance separation

Reference Number: D-13-22-04

Property Address: Part of Lot 12, Concession 10, Part 1 of Plan 50R-7287

Municipality: City of Clarence-Rockland

OLT Case No.: OLT-22-004001

OLT Lead Case No.: OLT-22-004001

OLT Case Name: Beauchamp v. Clarence-Rockland (City)

Heard: November 23, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Monica Gaumond and Maxime Beauchamp (collectively the “Applicant” or “Appellant”)

Stéphane Émard-Chabot

Mr. Gerardus Rijke of Hamlane Farm Inc. (the “Mr. Rijke”)

Self-Represented

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

1This is an appeal of the decision by the Committee of Adjustment (the “Committee”) of the City of Clarence-Rockland (the “City”) refusing to authorize a minor variance application (the “MV Application”) regarding the property located on the west side of Joanisse Road and having a legal description of Part of Lot 12, Concession 10, Part 1 on Reference Plan 50R-7287 (the “Subject Property”). The Appellant requested the reduction to the required minimum distance separation (“MDS”) between the Subject Property and the dairy farm property located at 2746 Joanisse Road (the “Dairy Farm”) to facilitate the construction of a new dwelling (the “Proposed House”) on the vacant Subject Property.

2The City’s planning staff report recommended that the Committee authorize the application. The Committee however refused the application due to a concern that the proposed development would limit the expansion of the Dairy Farm operated by Hamlane Farm Inc.

HEARING

3A Hearing was held on November 23, 2022. The City did not appear and the Applicant was represented by counsel. The Applicant issued a summons to Marie – Eve Belanger, the City’s Manager of Planning, (the “Ms. Belanger” or “City’s Planner”) a registered planner who was qualified as an expert to give evidence in the field of land use planning.

4Mr. Gerardus Rijke a co-owner of the Dairy Farm, was granted party status since he made submissions to the Committee regarding the application and concerns for the future expansion of his farm. He was unrepresented, is not a registered planner and did not engage a planner to provide planning evidence to the Tribunal.

5The appeal of the Committee decision to the Tribunal requires a hearing de novo of the MV Application, while having regard to the Committee decision and the material considered by the Committee.

6Ms. Belanger gave both planning and contextual evidence regarding the application. The Subject Property is a vacant lot of record and a severance is not required. The lot has a frontage of 38.1 metres, a depth of 91.01 metres and a lot area of 0.34 hectare.

7Most of the Subject Property is located within the “Rural Policy Area” and a small L shaped portion along its perimeter is found within the “Agricultural Resource Policy Area” according to Schedule “A” of the Official Plan of the United Counties of Prescott and Russell (the “OP”). Both these designations permit residential uses.

8The entire property is included within the Rural (RU) zone in the City of Clarence-Rockland’s Zoning By-law 2016-10 (the “ZB”) which permits the proposed residential uses. Due to the proximity of the Subject Property to a horse farm and the Dairy Farm, it must comply with the MDS setback requirements of the ZB. The MDS is calculated using a multi-factor formula and differs for both the horse farm and Dairy Farm. The Subject Property conforms with the MDS requirements for the horse farm but does not conform with the 429 metres MDS required for the Dairy Farm.

9Before a building permit can be issued for a single-detached dwelling the following minor variance must be authorized:

(a) To permit a single-detached dwelling located 292.8 metres from the nearby dairy farm, rather than the required Minimum Distance Separation between the property is 429 metres. (Section 4.26 (d)).

10There are three other rural lots with detached dwellings within the 429 metre MDS radius required by the ZB. These dwellings are closer to the Dairy Farm and are located at 104 meters (2696 Joanisse road), 144 meters (2777 Joanisse Road) and 285 meters (2812 Joanisse Road) (collectively the “Proximate Rural Residential Lots”).

11Ms. Gaumond advised that she and her common-law spouse received the Subject Property as a gift from her grandparents. She wishes to build her permanent home on the property and settle in an area where she was born, has lived all her life and where many of her relatives reside.

12Ms. Belanger gave the following planning evidence related to the MV Application’s compliance with section 45(1) of the Planning Act (the “Act”).

general intent and purpose of the official plan (“OP”)

13For the majority of the Subject Property in the Rural Policy Area designation residential uses are permitted provided that they respect its rural character and they protect natural and environmental resources. The proposed dwelling will be appropriately scaled to maintain the character of the rural area and will fit with the context of other residential development along Joanisse Road. No adverse environmental or natural resource area impacts are anticipated from the development.

14Since a sliver of the property also falls within the Agricultural Resource Area in the OP, it is also important to review those policies. This designation permits single detached dwellings provided that they comply with the criteria of Policy 7 of Section 4.2.4 which permits:

1. one single detached dwelling and accessory structures are permitted on each conveyable lot;

2. such lot is of an appropriate size and shape and the dwelling can be serviced with private sewage disposal and water services;

3. such lot has frontage on a public road which is maintained on a year round basis;

4. complies with other relevant policies of this Plan; and

5. complies with the policies of Section 7 regarding Minimum Distance Separation Formulae.

15The proposed development will be on a lot large enough to accommodate appropriate private wastewater and water servicing. The Subject Property has frontage along Joanisse Road, which is a maintained public road. The development will require a variance to the MDS setback requirements for the Dairy Farm. Approval of the variance, upon satisfying the four tests, ensures compliance with OP policies.

16In the City Planner’s view, the requested variance maintains the general intent and purpose of the OP as it will allow a new permitted residential use on an existing lot of record, while respecting the rural character and avoiding negative impacts to environmental resources. The construction of a new dwelling on the Subject Property will not impede the existing farm operations nearby. The proposed use of the property is compatible with the various surrounding residential uses.

general intent and purpose of the zoning by-law

17The Subject Property is zoned Rural (RU) which permits residential uses. The ZB requires an MDS using a special formula that depends on numerous different factors and will vary based on those factors. The MDS for the Dairy Farm is higher than the MDS for the horse farm on the other side of the Subject Property. The MDS for a rural property used for residential purposes is significant when there is an adjacent livestock farm like the Dairy Farm.

18If there is an expansion of the Dairy Farm, with an addition to the barn or reconfiguration of the barn, a different MDS formula is used. The City Planner advised that generally speaking the MDS will be lower for the Dairy Farm making expansion for it easier.

19Section 4.26 of the ZB states that:

new land uses, including the creation of new lots and new expanding livestock facilities, shall comply with the Minimum Distance Separation (MDS) Formula. The Minimum Distance Separation Formula is applicable in zones where agriculture use (livestock) is a permitted use.

MDS 1 will apply through building permit on existing lots. Minor variances to MDS 1 distances can be considered based on-site specific circumstances. Circumstances that meet the intent, if not the precise distance of MDS I, or mitigate environmental impacts, may be considered by the Committee of Adjustment.

20The Proximate Rural Residential Lots have lower MDS than the proposed development. Granting the minor variance for the Subject Property is not anticipated to negatively affect the ability of the Dairy Farm to expand any more than the other Proximate Rural Residential Lots. The Subject Property is too small for agricultural uses and the only realistic use for a lot of this size is residential.

21The requested variance maintains the general intent and purpose of the ZB since residential uses are permitted, it is the only realistic use for the Subject Property and it will not negatively impact the Dairy Farm expansion, more than the other Proximate Rural Residential Lots.

Minor

22The evidence was that the MV Application is minor in nature since it is not expected to have an undue adverse impact due to the existing conditions with the Proximate Rural Residential Lots.

Desirability

23The requested variance is desirable for appropriate development of the Subject Property since it will allow the Applicant to build a new single-family dwelling on an existing lot of record, contributing to the total available housing within the City.

Provincial Policy Statement 2020 and applicable provincial plans

24Ms. Belanger advised the Tribunal that there are no applicable provincial plans that apply to the City. In her view, Section 2.3.3.3 of the Provincial Policy Statement 2020 (the “PPS”) is the most applicable policy and empowers the City to grant appropriate minor variances to MDS requirements if desirable. She believes that the proposed development is consistent with the PPS goals of promoting housing.

25Both Ms. Gaumond and Mr. Rijke gave evidence to the Tribunal of their efforts to settle their differences. They seem to be serious and reasonable people. These negotiations and their results were not factors in this decision.

26The Tribunal empathizes with the legitimate interests of the parties. Mr. Rijke has a legitimate concern regarding challenges for the future expansion of the Dairy Farm, while the Appellant wishes to construct her home without being unnecessarily impeded. The only planning evidence before the Tribunal supports the minor variance application and Mr. Rijke presented no expert evidence to the contrary.

27In summary, the MV Application complies with the requirements of subsection 45(1) of the Act and is consistent with the PPS and should be authorized. It is minor, desirable for the use and development of the Subject Property and maintains the general intent and purpose of both the applicable OP and the ZB.

ORDER

28THE TRIBUNAL ORDERS that the appeal is dismissed and the variance to By-law 2016-10 is authorized.

“A. Cornacchia”

A. CORNACCHIA

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.